Look around your workplace. What you find might surprise you. In fact, there could be a Harvey Weinstein lurking in your workplace? Although sexual harassment has been present in workplaces for over fifty years, recently more and more women have been revealing their stories and commencing lawsuits about harassment they have experienced in the workplace that has unfortunately too often been ignored, hidden or buried. In fact, in the wake of the Harvey Weinstein story, many more women have alleged that men in multiple industries including many high-level executives have sexually harassed them. As more and more plaintiffs begin to speak out on their experiences, you in HR have to be prepared and know what to do to respond to these allegations and to prevent them from happening in the first place.
The many women who have come out claiming Harvey Weinstein sexually harassed them have alleged that the company knew about the harassment and did nothing to stop it. This is perhaps the most damning claim that a plaintiff can make. Companies have a legal obligation to protect their employees from harassment. When any member of management knows about harassment, the organization has an obligation to conduct a prompt, thorough, impartial investigation and if the allegations are substantiated, take prompt corrective action against the alleged harasser. However, when people in powerful positions in the company are the alleged harassers, companies can often make the mistake of trying to cover up the harassment or implement discipline that is no more than a slap on the hand. This action or inaction can often lead to more liability than the initial act itself. Don’t make this mistake. Whether the alleged harasser in your workplace is a low-level employee or a top CEO, your obligations to protect your employees do not change. Both the law and your policies require that you protect your employees from all types of harassment and that means when allegations are substantiated, disciplining alleged harassers up to and including termination.
What steps should you be taking to best protect your organization from these kinds of claims. First and foremost, you must be providing sexual and unlawful harassment training at least annually. This training should not be online training because too many employees merely click “next” and do not really have the opportunity to ask important questions or to really understand the material in a way that is relevant to them. In addition, online training often conveys a message that preventing harassment is not important enough to your organization to pay for and bring in an experienced trainer, a message that you should avoid conveying.
In addition, whenever you receive a complaint of harassment you need to commence a thorough and impartial investigation promptly, which usually means within a day or two. If the allegations are substantiated, you need to take some sort of prompt corrective action against the harasser which at the very least should be sending them for some one-on-one sexual harassment training and providing them with a disciplinary warning or you might need to terminate them. You cannot avoid taking such action merely because the alleged harasser is powerful or above you in the organization. If necessary, seek the protection or advice of outside counsel or your boss but never ever avoid taking disciplinary action because this person is the “rainmaker” at your firm or because they are high up in the organization. Such action can lead to liability for your organization and even sometimes for you personally.
The bottom line is that in the world of sexual harassment, all harassers are considered equal, meaning that they all should be treated the same no matter what their status is in your organization. This will help prevent potential liability for your organization and ensure that if there is litigation you will be in the best position to defend your organization.